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Thursday, 10 December 2009

Beset by an avalanche of new IP developments on a daily basis, the IPKat is always delighted to receive the help and assistance of his friends. He is accordingly very grateful to Bart Kiewiet (President, Community Plant Variety Office) for taking the time and effort to draw his attention to a recent Advocate General's Opinion (of 3 December) which the Kat knew was coming but quite overlooked at the time it was published online. Let Bart take up the narrative here:

"Here you find the opinion of the Advocate General Mazak in Case C-38/09 P concerning Community plant variety rights. The object of this case is a ruling of the Court of First Instance in Schräder v CPVO (Case T-187/06) mentioned on your website in November 2008 [here and here].

I would like to draw your special attention to paragraphs 25 and 26 of the conclusions (see below), in which the AG, in the wake of the Court of First instance, states that judicial review of complex assessments of a technical , scientific economic or social nature must be rather marginal. The relevant case law is, in the opinion of the AG, also applicable to decisions taken in the framework of the Community plant variety protection system.

"25. In that regard, it is apparent from the case-law of the Court that where Community authorities are, when exercising their powers, called upon to make complex assessments of a technical, scientific, economic or social nature, those authorities are to be accorded a certain margin of appreciation. It also follows from the case-law that, when reviewing an administrative decision based on such an appraisal, the Community judicature must not substitute its own assessment for that of the competent authority. Consequently, judicial review in such matters must be limited to verifying that the measure in question is not vitiated by any manifest errors or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion. In particular, as the Court of First Instance pointed out..., the Community judicature must in such cases examine whether the evidence relied on is factually accurate, reliable and consistent and whether that evidence contains all the information which must be taken into account in order to assess the complex situation concerned.

26. That case-law is, in my view, also applicable as regards the grant of Community plant variety rights to the extent, however, that an administrative decision in that field is the result of complex assessments of the kind referred to in the aforementioned case-law, as is without doubt, as the Court of First Instance held ..., the case when it comes to appraising the distinctive character of a plant variety in the light of the criteria laid down in Article 7(1) of Regulation No 2100/94.

I hope that you will draw the attention of your website friends to this opinion".

The IPKat is always pleased to oblige.

Incidentally, the AG advises the Court to dismiss the appeal -- presumably on the basis that once the position of the CPVO and the CFI has become firmly embedded and takes root, it's not a good idea to keep digging it up ...